Defy Description

Your brand name should be the one thing competitors can't take away from you. That's not the case if your name is too descriptive. The Trademark Trial and Appeal Board, the crime and punishment division of the United States Patent and Trademark Office (USPTO), doled out an important lesson last month.

Two lessons, really.

The first was that, even though you may have a trademark for a number of years, as in the case of Pretzel Crisps, a brand of "flat pretzel cracker" introduced in 2008 by the Snack Factory of New Jersey, you can still end up losing the phrase -- regardless of how well business is doing.

The second, and more important lesson, is that being too descriptive with your trademark can set you up for trouble... which is why Warren and Sara Wilson, the inventors of Pretzel Crisps, are now likely scrambling to figure out what to do where the name of their popular snack is concerned.

The Pretzel Crisps name had already been relegated to the Secondary Register, which is a kind of trademark purgatory reserved for brand names deemed descriptive enough that only minimal protection can be offered. In this case, both the words Pretzel and Crisps are widely regarded as being generic and only the instance of the two words appearing together is considered to constitute a trademark.

But then snack food giant Frito-Lay, owned by Pepsico, decided to oppose the mark, arguing that Pretzel Crisps cannot be registered as a trademark because it itself constitutes a generic term. "Like 'milk chocolate bar,' the combination of 'pretzel' and 'crisp' gains no meaning as a phrase over and above the generic meaning of its constituent terms", the company wrote in a motion to the USPTO back in 2010.

According to the New York Times, Princeton Vanguard, the LLC that owns Pretzel Crisp and Snack Factory, and filed for the trademark, has spent $1 million in legal fees. Not much, considering Pretzel Crisps has grown quickly, with over $100 million in sales in 2011. But it was a million bucks spent to find out that they no longer hold a trademark on their own name.

What the makers of Pretzel Crisps do next is anyone's guess, but an expensive name change is one likely scenario. A scenario that could have been avoided by considering names that could have effectively supported the snack chips' attributes and taste profiles, while steering clear of simply describing what they are.

(This blog entry was originally published on the Lexicon Blog, Mar. 10, 2014)